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Getty Images v. Advernet Decision (Southern District of NY)

Getty Images v. Advernet Decision (Southern District of NY)

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Getty Images v. Advernet Case. Memorandum and Order from Southern District of New York. Kevin Nathaniel Fox, U.S. Magistrate Judge.
Getty Images v. Advernet Case. Memorandum and Order from Southern District of New York. Kevin Nathaniel Fox, U.S. Magistrate Judge.

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Published by: ExtortionLetterInfo.com on Dec 13, 2011
Copyright:Attribution Non-commercial


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*1 Getty Images (US) Inc., commenced this copyright infringement action, pursuant to17U.S.C. § 501, seeking monetary damages and injunctive relief against Advernet, Inc., formerlyknown as VR Marketing, Inc., due to the defendant's alleged unauthorized use of the plaintiff's photographic images. The defendant made a motion to dismiss the complaint, pursuant toRule12 of the Federal Rules of Civil Procedure, claiming the: (a) plaintiff lacked standing to bringthis action, because it did not allege that the licenses it obtained from the various photographersinclude an exclusive right to bring this action; and (b) complaint failed to state a cause of action, because it did not allege that the plaintiff has an exclusive right to enforce the rights in theimages. On July 6, 2009, the defendant withdrew its motion to dismiss and filed an answer. The parties consented to proceed before the Court for all purposes, pursuant to28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. On May 19, 2010, the Court granted defense counsel's motion to withdraw from representing the defendant, based on the defendant's failure to pay legal fees. By that order,the Court also: (i) directed the defendant to engage new counsel, on or before June 1, 2010, because, as a corporate entity, it could not proceed
 pro se;
(ii) directed the defendant to have itsnew counsel file, with the Clerk of Court, a notice of appearance on behalf of the defendant; (iii)informed the parties that a telephonic status conference would be held with them on June 7,2010, and that counsel to the plaintiff should initiate the telephonic conference; and (iv) directedthe relieved defendant's counsel “to serve a copy of this order on the defendant expeditiously andto file proof of service with the Clerk of Court,” which he did. The defendant failed to participatein the telephonic status conference on June 7, 2010. No attorney filed a notice of appearance on behalf of the defendant.On June 23, 2010, the plaintiff filed a motion for judgment, by default, pursuant to Rule 55 of the Federal Rules of Civil Procedure. On November 2, 2010,2010 WL 4536995,the Court denied the plaintiff's motion, without prejudice, because,
inter alia,
no default had been entered by the Clerk of Court and, by a separate order, directed: (a) the Clerk of Court to enter thedefendant's default; (b) the plaintiff to file proof of service on the defendant of a copy of theClerk's Certificate noting the default, the entry of default and the Court's November 2, 2010order; (c) the defendant to file a motion to set aside the default, pursuant to Fed.R.Civ.P. 55(c); and (d) absent aFed.R.Civ.P. 55(c)motion, the plaintiff to file its motion for judgment, bydefault. No motion to set aside the default was filed.On December 9, 2010, the plaintiff filed a motion for judgment, by default, pursuant toFed.R.Civ.P. 55(b)(2). The plaintiff seeks: (a) a default judgment against the defendant; (b)damages of $24,275.00, with interest; (c) an order “permanently enjoining Advernet frominfringing Plaintiff's copyrighted images”; (d) “prejudgment interest on the amount of theaward”; and (e) “such other and further relief as this Court deems just and proper.” On December 16, 2010, the Court ordered that an inquest hearing be conducted, pursuant toFed.R.Civ.P. 55(b)
(2), in connection with the plaintiff's motion, in order to establish: (a) the truth of the allegationsin the complaint; and (b) the amount of damages, and to investigate any other pertinent matter.The Court required: (i) evidence of the plaintiff's “exclusive license” to each of the thirty-fiveimages at issue, demonstrating the plaintiff's alleged rights to bring this action; (ii) evidence of the period during which the infringement is alleged to have occurred respecting each of thethirty-five images; (iii) evidence of the “information provided to [the plaintiff] by defendant inresponse to [the plaintiff's] demand letters regarding the infringing use”; and (iv) any other evidence in connection with the defendant's liability and damages. The court also directed the plaintiff to serve the defendant with a copy of the December 16, 2010 order, with which the plaintiff complied. Only the plaintiff appeared at the inquest hearing, held on February 1, 2011,and presented evidence in support of its motion. The motion is not opposed.
*2 The plaintiff alleges, through the complaint, that it is “one of the world's leading content providers, supplying high quality, relevant imagery and related services to advertising agencies,graphic design firms, and film and broadcasting companies, to editorial customers involved innewspaper, magazine, book, CD–ROM and online publishing, and to corporate marketingdepartments and other business customers.” The plaintiff contends:Most of the images in [its] creative collections are obtained from independent photographers andfilmmakers on an exclusive basis. Professional photographers and filmmakers prefer to retainownership of their work. As a result, copyright to an image remains with the contributing photographer or filmmaker in most cases .... Getty Images was the first company to licenseimagery via the Internet and today delivers virtually all of its visual content digitally.... Visitorsto Getty Images's web site can search through and view hundreds of thousands of images andobtain licenses for those images online.According to the plaintiff, the defendant “owns and operates a web site” and “holds itself to be aone stop shop to handle all of your web site needs ... [f]rom website production to hosting to 3Danimation.” Among other things, the defendant lists “Photography” and “Aerial Photography” ascategories of products and services it offers. The plaintiff alleges that, on June 2, 2006, it notifiedthe defendant of an alleged instance of unauthorized use, on its Web site, of “Image No.wa0173–001.” On July 5, 2006, the parties entered into a settlement and release agreement withrespect to the use of that image and the plaintiff reserved the right to seek redress for anyunauthorized use of photographs or images not disclosed by the defendant previously and for anyinfringement occurring after June 13, 2006, including the infringement of the image number “wa0173–001.”In September 2006, the plaintiff claims it discovered that the defendant “had obtained copiesof eight images exclusively licensed to Getty Images (and not covered by the settlement andrelease agreement) and had incorporated those images into a web site designed, published andmanaged by [the defendant] for Coquina Hotel, Ltd., at http://www.holidayinmyrtlebeach.com.
This use was continuous until at least September 25, 2006.” According to the plaintiff, thedefendant “began using at least four of these images in August 2004 and had been using all of the eight images at least since May 18, 2006. In December 2006, the plaintiff discovered copiesof an (sic) additional two images exclusively licensed to Getty Images (and not covered by thesettlement and release agreement) incorporated into the web site of Coquina Hotel, Ltd. at
hotel_vacation_packages.html and http://www.holidayinmyrtlebeach.com/hotel_meeting_rooms.htm.” The plaintiff maintains that thedefendant's “use of the ten images was unauthorized and violated the rights of Getty Images andof the authors of those images.”The plaintiff alleges further that, “[i]n September 2007, [it] discovered an additional thirty-three images exclusively licensed to Getty Images (and not covered by the settlement and releaseagreement) of which [the defendant] had obtained copies and incorporated into seven web sites,designed, published, and managed by [it].” According to the plaintiff, “[t]hirty-five of the images[the defendant] copied and incorporated into the web sites it designed, publishes, and manageshave been registered with the United States Copyright Office.” The thirty-five images alleged tohave been infringed are as follows: NameImage NumberCollectionDate of RegistrationRegistration Number 1Back of woman in poolCA33374Taxi12/21/2007VA16245792For Salesign outsidehouse, close–upBA60210Taxi12/27/2007VA16250023Woman lying on raft inswimming pool,overhead viewAB22261Taxi1/3/2008VA16250084Calendar pages, close-up (grainy)BA17693Taxi1/2/2008VA16251005Business womancatching falling money200167546–004Photographer'sChoice1/3/2008VA16251026Woman having a facialCA08409Taxi1/3/2008VA16251107Maid holding towels byindoor pool, portrait200218729001Taxi1/3/2008VA16251158Street signssuperimposed on dollar signs, low angled (B &W)200009442–001Photographer'sChoice1/3/2008VA16251189Crowd Cheering at baseball game10197811The Image Bank1/3/2008VA162512210Jetty extending into sea,Cancun, Yucatan,Mexico10197228Stone1/3/2008VA162512311Young man with eyeopen wide, close–up200009356–001Photographer'sChoice1/3/2008VA16251241Couple making a toast BA62505Taxi1/3/2008VA1625126

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